How Hillary Could Seize Your Guns

Lyle Denniston, Constitution Daily’s Supreme Court correspondent, examines the future of a 2008 Supreme Court decision recognizing, for the first time, an individual right under the Second Amendment to have a gun for personal use.

THE STATEMENT AT ISSUE:

“The National Rifle Association released its latest ad in support of Donald Trump on Tuesday, claiming a vote for Hillary Clinton would leave the people defenseless. The NRA’s new commercial, which is part of a $5 million campaign, depicts a woman reacting to a break-in at her house. A narrator claims: ‘Hillary Clinton would take away her right to self-defense, and with Supreme Court Justices, Hillary can.’ ”

– Excerpt from an online story September 20 on AOL News.

WE CHECKED THE CONSTITUTION, AND…

Undoubtedly, it is very hard to gather the support necessary to propose and ratify an amendment to the United States Constitution, using the procedures spelled out in Article V. That has been done only 27 times, and 10 of those amendments (the Bill of Rights) were adopted all at once. The infrequency of that may be due either to the fact that the obstacles are so high, or it could be due to the Founders’ vision in having written an instrument that would be quite adaptable to changing times.

If the document is flexible in that way, one would assume the Supreme Court might be inclined to change its mind fairly often about its interpretation of what the basic document means. But, in 229 years, the court has only overruled one of its constitutional decisions 95 times. (Perhaps the most famous, at least to modern Americans, was the decision in 1954 in Brown v. Board of Education, overruling the 1896 decision in Plessy v. Fergusonand, thereby, ordering an end to racial segregation in the nation’s public schools.)

The Supreme Court has told the nation that it does not lightly overrule one of its decisions. In 1992, when it declined to overrule its abortion rights ruling (the 1973 decision in Roe v. Wade), the court said that it was not enough that the members of a current court believed that a prior ruling was wrong. The decision to overrule, it said, should be guided by prudence and pragmatism. It gave several examples of the influencing factors: whether the prior decision had become unworkable as a legal precedent; whether and how much the public has generally come to rely on the precedent; whether changes in legal principles have undermined the prior ruling; and whether there has been a change in the facts that bear on the constitutional question.

In this presidential election year, there is much debate in the political class about the future of gun rights in America – specifically, whether the Supreme Court will continue to follow its 2008 decision recognizing, for the first time, an individual right under the Second Amendment to have a gun for personal use, especially in defending one’s self in one’s own home.

When the court pronounced the existence of that right, and spelled out some of its dimensions, in the case of District of Columbia v. Heller, it did so by a 5-to-4 vote. Only four of the Justices who were in the majority then remain on the court now; Justice Antonin Scalia, the fifth, died in February.

Today, the court is split 4-to-4 along philosophical or ideological lines, with four more or less conservative Justices and four more or less liberal Justices. If a case were now to reach this court, with a plea to overrule that Second Amendment decision, what would be likely to happen?

Without a ninth Justice, the court might wind up splitting split 4-to-4 (assuming that it even would agree to hear such a plea). And, since no lower court has the authority to overrule a Supreme Court precedent, the lower court ruling at stake in such a case would have left the Second Amendment undisturbed, and the Justices’ 4-to-4 split would uphold that result. Thus, gun rights would remain as protected as they were before.

It is easy to see, then, why the NRA and gun rights advocates in general, would be nervous about who will be elected president with the opportunity to appoint a new ninth Justice, and thus probably hold sway over many major constitutional controversies, perhaps including the scope of the Second Amendment.

But the fact is that there is no certainty, even if a new Justice with strong liberal leanings were to join the court, that there would be an automatic majority to reconsider and overrule the 2008 decision establishing a quite broad right to have a gun.

Assume, for the sake of discussion, that the court would apply the factors that it listed in 1992 on whether to overrule that precedent. There is absolutely no indication that the current court thinks the 2008 precedent is unworkable. The court has left the lower courts entirely alone, in those intervening years, to work out the details of the right; repeatedly, it has refused to second-guess the lower courts’ results. And those results show that lower courts have been quite capable to allowing reasonable limitations on gun rights without destroying or even seriously compromise the basic right to have a gun.

Very likely, the Justices would perceive that a many Americans have come to rely on the 2008 precedent to protect their gun rights, and that would include many law-abiding folks who do not abuse those rights. Also, there has been no change in legal doctrine underlying the Second Amendment in the past eight years; the Second Amendment precedent stands largely on how the modern court interpreted past history, and that record has not changed.

The one factor that might be perceived differently would be the facts of gun violence. Would the court, looking at what has actually happened in America since 2008 in terms of violence traceable to guns, be inclined to perceive that the Second Amendment was the actual cause of the increase? That is too simplistic, it would seem, to be seen as a strongly influencing factor. If members of the court do sense that there is a need for government to do something about the abuse of gun rights, it is very likely that they would feel that change should come from Congress or the state legislatures.

Within the range of reasonable probability, the Second Amendment is probably on a quite solid constitutional foundation – whatever the next president may have in mind for it.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears onlyldenlawnews.com, where this story first appeared

9 comments:

the nra has taken more guns away from people than dems ever will! thanks to the nra the rising price of guns and ammo, people can't afford them. it's cheaper to by a crappy pound of hamburger than the shotshells to kill a mess of squirrel.

Why have gun prices gone up .Well its not 1975 anymore for one reason.Reason 2 is a quality firearm cost more then junk.Lawyers are another reason.But demo trying to or rumors of gun bans and restrictions. This also resulted in common caliber ammo inceases buy causing fear in the general public which increased demand.Unsavory types increased prices on items in high demand such as ar 15 and ak clones and certain ammo.Good old President Obama Nancy Pelosi and numerous other far left Democrats think they know what's best for everyone.They fail to see the gun is not the problem it's the person.This affected the entire firearm Industry industry and ammo industry.The Road Runner...

Democrats of the left winh varietynot only hate guns but also hunters.Lets not forget they want every fire arm to have a electronics that prevent anyone but the owner to be able to fire the gun and for each gun to leave a custom coded imprint on each round.All of this would drive up the peice of firearms by 3 times current costs and ammo will soar in prices to two to 3 dollars a round for common 9 millimeter.The NRA fights these draconian tactics.Also dont forget Nancy Pelosi Joe Biden and Dianne Feinstein I think you should use a 12 gauge shotgun how many 80 year old woman do you know that can shoot a 12 gauge shotgun they don't want you to have a pistol for self-defense.Make no mistake clinton wants your guns just like obama .The criminals will never turn them in Or obey gun laws they love laws that disarm honest citizens it makes it so much easier for them to Rob them or rape them.

These wacked right wingers like the Road Runner whined so much about how Obama was going to take our guns. Eight years later and I still have my guns. Now that their wrong on Obama, it's on to Clinton. Will they ever learn that their whinings are just that?

I do no recall whinning that Obama was going to take guns.I do recall whinning about the debt he ran up. In 8 years he ran up more debt than ever president did in the last 240 years.Yes I whinned about that.I also whinned about the demo partys position on immigration and its long term impact on the usa from lost jobs taken from citizens lower wages from a over abundance off workers.And the effects of the Obama policies on foreign affairs.Which by the way have placed our nation on the joke list if you notice how groups even entire nations are showi g us their rear end and thumbing their noses at us.I also whinned about those on food stamps increasing about 40 percent.I also whinned about how there were less people owning their own home in 40 years ago.Iwhinned how the militarys no longer the force it was .I whinned about Obama care which has cost billions and is not in a state of failure with cops closing insurance companys refusing to provide it due to them loosing millions.I whinned about how hillary lost 6 billion dollars while at the head of the statedepartment.I have been whinning about how clinton lied about having recived and sent classified material on her private server and Blackberry phones breaking laws left and right endangering a untold ammount of people and operations yet getting better deals then the pokey Sheriffs offices felons and family of rats.So yes im a whinner no doubt but not about the posdiblity of my guns being taken away.

Tell me are you still crying blaming bush for everything or have you got over that.

The Road Runner...

One nice thing has happen3d under Obama the stock market is good and the Really rich have gotten richer under obama and big coporationns are posting record profitsthe ranks of the poor have increased I giess someones got to pay so hillary and obama can play

Sorry guys and girls but no one is going to take you guns. Nope not going to happen. Please allow me to explain and please look up what i'm going to say please fact check. A President cannot abolish an amendment, the congress cannot abolish an amendment and the supreme court cannot abolish an amendment. Truly.....please read this. Let’s say we decided to do away with the 2nd Amendment. Here’s what would need to happen:

The U.S. House of Representatives would need to come together with the Senate and draft an Amendment to the Constitution. They would then need to approve it with a two-thirds supermajority. Simply drafting and approving a proposed Amendment to the Constitution is difficult, as it requires the vast majority of Congress (including the lobbyists who own them) to be on board with it.

Once approved by both houses of Congress, the proposal is then sent to the states for ratification. This requires three-fourths of state legislatures to vote in approval of it, meaning it’s not just Congress who has to be in overwhelming agreement– the governments of the 50 states have to be in near-universal agreement with the proposed change as well.

This is precisely why there have been so few changes to the Constitution in our history– it is extremely hard to do, and it requires the vast majority of the country to be in agreement about the change.

It cannot be done by one person. It cannot even be done by one branch of government. That’s not how our system works. Yes that is how it works. So please stop telling people that Hillary and Obama is going to take people's guns.